Clinic gets OK for JR of DPP’s failure to prosecute ex-CMO
(CNS): Doctors Express and its related companies have been given the green light by the Grand Court to bring a judicial review of a decision by the director of public prosecutions (DPP) not to institute criminal proceedings against the former chief medical officer, Dr John Lee, and customs officer Holly Schneider for perjury, attempting to pervert the course of justice and misfeasance in public office in relation to an illegal raid of the clinic in 2019. The application also seeks a review of why other officials have not been prosecuted and the DPP’s refusal to give reasons for the decisions.
The case refers to an unlawful bust at the Doctors Express Medical Centre in 2019. Police seized medical cannabis from the physicians at the private clinic based on an unlawful warrant, which in turn was based on an unlawful cease notice issued by Dr Lee. Doctors Express won a judicial review in 2021 after Justice Robin McMillan identified a catalogue of wrongdoing in relation to the raid and found that various public officials colluded to prevent the doctors from dispensing legal cannabis to their patients.
Following that successful legal case, the applicants filed a complaint with the Anti-Corruption Commission about possible criminal conduct by the officials involved. The commission carried out an investigation and a file was sent to crown prosecutors. But in February last year, the applicants were told by the ACC that the DPP had declined to approve charges against anyone involved, despite the damning evidence and the findings of the court.
The clinic argued that the public officers involved had “abused the powers of their office to such a level that the criminal threshold is met” but no charges have ever been brought against anyone involved, even though the original court found that the search warrant had been sought and obtained for an improper purpose.
In making her decision earlier this month to grant the judicial review of the DPP and the relevant decisions, Justice Cheryll Richards said the judge in the original case had made “findings of fact as to inconsistencies in the evidence of the witnesses, Dr Lee and CO Schneider, and ultimately as to their veracity and motives”. However, she explained that she was not finding facts in this particular application on whether they were true, or if they were, that anyone “ought or ought not to be prosecuted”.
But based on the arguments raised by the applicants, she found that there was an arguable case and that leave for judicial review should be granted. “At this stage on a prima facie basis, the complaint of a failure by the Director to consider all the available evidence and the full range of offences with the possible consequential effect as asserted by the Applicants appears to be arguable,” she wrote in her ruling.
This is believed to be the first case in the Cayman Islands where applicants have secured a judicial review of a prosecutor’s decision not to charge, and the office of the DPP is said to be one of the hardest government entities to secure a hearing for legal scrutiny. Justice Richards noted that the power of a review in such circumstances is to be “sparingly exercised”.
The doctors have argued that there was a failure by the director to consider all the evidence, which could render the decision not to charge anyone unlawful. They also submit that the DPP has applied a higher test of knowledge than is required in proof of the offence of misconduct in public office.
By bringing the judicial review, Doctors Express said in their application that they wish to secure court orders directing prosecutors to reconsider the decision not to prosecute Dr Lee, CO Schneider or anyone else over their alleged unlawful actions, the evidence they gave in the cases and the facts established in the original proceedings. The clinic is also seeking declarations that the failure to give reasons for the decision not to bring criminal proceedings was unlawful and rendered the decisions void.
Following the successful judicial review of the raid, the doctors have continued to lawfully prescribe cannabis-based products to their patients. But the issue of damages, which their attorney, James Austin-Smith, has said are likely to be considerable, has still not been finalised.
See the ruling below:
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When we moved to Cayman our first government experience was with a customs officer, we were told not to complain about her blackmail attempts as she was having an affair with the boss.
The community’s evident loss of confidence in the ODPP leads inexorably to the ODPP’s loss of credibility in the community which in turn leads to skepticism in relation to the ODPP’s arguments in court which leads to reduced probability that any jury will convict which leads to further loss of the ODPP’s credibility… etc…
This cycle needs to be broken and that cannot happen if we do nothing. It is past time for a thorough top to bottom external review of everything related to criminal prosecutions in this country.
Corruption, conflicts of interest, Nepotism, favouritism, sexual Harassment are rife at CBC absolutely nothing is done about perpetrators or the victims . Govt however chooses to turn a blind eye and cover up $#@% every single time they hear or get a complaint.
https://caymanmarlroad.com/2023/01/12/visitor-feels-violated-by-cbc-body-search/
CBC has been failing miserably.
Corruption, conflicts of interest, Nepotism, favouritism, sexual Harassment are rife Throughout government, including within the investigative departments employed to investigate these matters.
How many of these departments are headed by long in the tooth ex-pat dinosaurs who should have been put out to pasture years ago.
We need fresh, current expertise not retirees lining their pockets and those of their buddies at the expense of Cayman.
This type are vulnerable to coercion and corruption to protect their positions.
Charles Clifford is no expat. No argument with the rest of your comment.
Just ask about the recent promotion of a very young officer. He happens to be the nephew of one of the deputy heads of CBC.
There is a certain irony in any expectation that the ODPP will prosecute maladministration when the ODPP has failed to publish any standards that it purports to adhere to, has no published performance data and has no published complaints procedure.
I know that the DPP is not Scottish and our Cabinet is probably not current on the manual their counterparts in Scotland use but perhaps this passage from The Scottish Public Finance Manual might provide a nudge in the right direction for both. The Scots at least understand that the failure to publish standards by any equivalent of ouor ODPP may itself be on the wrong side of the maladministration/service failure line.
“All public sector organisations should set clear standards for their performance and have a clear accessible complaints procedure together with appropriate redress for the user of the services when something goes wrong.”
https://www.gov.scot/publications/scottish-public-finance-manual/maladministration/maladministration/
Public officials protecting public officials instead of doing their job.
The justice system is supposed to justice and uphold the rule of law instead of injustice and subverting the rule of law.
Based on comments here and ‘around the water cooler’ there are very few people with any confidence in the ODPP. In any properly run country that alone would justify a formal commission of inquiry tasked with identifying the failings and recommending remediation measures.
Absolutely correct.
The CBC has a culture driven by ridiculous policy documents and laws crafted by advisers with ulterior motives. Imagine a law that says any article with a picture of a leaf is illegal and would be seized. OK. So they seized my hand cream that you can buy at any Body Shop. Well low and behold I saw a product with the same depiction of the evil leaf being prominently displayed. Of course I took a picture and noted the date and location. I feel like CBC enforces this law selectively and unwary travelers unaware of this silly law fall victim. Seeking legal advice! There is a difference between cannabis and hemp although they look the same cannabis is loaded with THC whereas hemp is not.
I’m ecstatic that someone has brought the bullies to court.
Rules for thee but not for me, sending all the wrong confirmation to stakeholders, FATF, and other territorial forces of opposition. This is just another example that explains why we can’t soon shake global interest in our governance reviews. They are justified concerns.
‘Da wha ya get’ when there is no published code of conduct, no published performance information, and therefore no evident accountability.
Anyone interested in comparing ‘what is’ in Cayman with ‘what ought to be’, can compare the website of our DPP – found here:
http://www.dpp.gov.ky/portal/page/portal/dpphome
with the website of prosecution services in places like the UK – found here:
https://www.cps.gov.uk/publication/code-crown-prosecutors
and here:
https://www.cps.gov.uk/publication/performance-management-and-case-outcomes
Australia, NZ, and Canada similarly publish information that informs their legislators and their citizens in relation to the conduct and efficacy of their prosecution services.
How does our Auditor General audit the Office of the DPP on a value for money basis when there are no standards and no performance information is published?
How do our legislators, and the Public Accounts Committee of our Parliament in particular, justify the funds spent when there are no published standards and no reported performance information?
There is no reason that we should not have access to basic information regarding the expected standards and performance of our ODPP, other than possibly the potential for embarrassment.
What about the other unlawful raid on a local retail business carried out by the same individuals based on false information XXXX? Not one person to investigate this level of alleged corruption going on here. There must be accountability for some of these people our we shall be on the Grey List forever!
I commend those who brought this JR application to the Grand Court.
Their case once again highlights the long standing transparency and competence issues that have plagued the Office of the Director of Public Prosecutions for years.
Obvious improvements have been suggested on CNS and elsewhere many times in recent years including here:
https://caymannewsservice.com/2021/05/good-governance-and-the-cayman-islands-prosecution-service/
However, positive change has been consistently rejected in favour of sweeping obvious problems under a rug that is now as tall as Mount Trashmore.
Thank you once to those who brought this JR application!
So the question is IF the JR finds that the DPP was wrong, what happens then?
And…..
If the DPP was wrong in this case, how many other cases……
Lots more prosecutions of public officials are needed whether by the DPP or via private prosecutions.
Clearly this situation has long left yet another huge question mark about the decision makers in Cayman making legit decisions, let alone the refusal to even attempt to provide any reason why no one was held to account? Seemingly it’s because so many very high-level persons are involved! Hopefully Doctor’s is successful with their efforts to effect Justice!
Any decision to charge by the ODPP is reliant on the quality of the investigation by an investigatory agency, such as the Police, Anti-Corruption unit etc.
If the investigation is inadequate or tainted due to incompetence, corruption ..or both, then the ODPP will struggle to bring charges.
The question should be who investigated this and what their remit or agenda was.
It is entirely possible that incompetence exists at multiple levels in both the investigative agencies and the ODPP. Unless and until we have a fully independent and exhaustive external audit led by a very experienced senior outside expert tasked with identifying and recommending remediation for all existing deficiencies, the current problems will fester on. The best time to act in that regard was years ago. Now is the next best time.
And yet there is rarely if ever any comment by the ODPP about the quality of investigations or evidence gathering / presentation. An important function of an ODPP is to ensure legitimate and timely prosecutions are happening so the courts can proceed to hopefully ensure Justice occurs. Any breakdown from policing to prosecution to the courts needs to be called out by any and all involved! Why is the ODPP content to be so quiet where reasonable actions are needed?
It would shock you to learn how deep this one goes! Some recently retired family members must be very concerned.
Corruption & failure to prosecute aside, what was the reasoning behind this “raid” in the first place? Doctors Express clearly wasn’t doing anything illegal. All very bizarre.
Apparently public officials have great difficulty distinguishing the difference between lawfully authorized medication and illegal drugs. That’s the most innocent excuse.
Church lobby
If they charge him they are going to have to charge the Chuckster as well. We all know that’s why no charges will ever be filed.
Finally someone with the money and time is standing up these morally bankrupt cartel of ‘higher ups’ in government. sooner or later these people are going to bankrupt this country because of lawsuits.
status lawsuits come next.
Has franz finished his report yet, it’s only 3 yrs late
Franz should resign or be fired now
Franz could never try and tell me anything about accountability and integrity. His Civil service is an utter failure and embarrassment and he continues to make excuses. World a class my A$$
Is the Governor’s office reading these comments. Can they read? This shitshow has gone on too long! These bastards are destroying Cayman.
Wow. That’s a lot of abbreviations for one headline!! 🤯
Low carbon footprint. Get with the programme.
No Weed? No Wote.
Hmmm.
Maybe a judicial review should also be done on the McBeater incident which seems to also have died a natural death.
Hope this serves as a warning to all concerned that no one, absolutely no one, is above the Law!
so what about watler’s case?
democracy working! keep up good work
It is extremely concerning that the DPP’s office refused to give reasons for the decisions. That only creates suspicion around the decisions made by the office. Also, one gets the impression that crimes are only crimes for the people that the DPP,s office wants to prosecute. There is clearly a need for an independent body to have oversight of the decisions being made by the DPP,s office.
“one gets the impression that crimes are only crimes for the people that the DPP,s office wants to prosecute.”
Well yes that is how literally every jurisdiction that has any semblance of an independent criminal justice system works at some point either the police or some other body such as a district attorney, Grand Jury, Federal Department, or body of Prosecutors decide whether or not to proceed with criminal charges on a matter
Things can be against the law – but criminal charges only proceed if some public body proceeds with said charges
Wrong as a matter of both Cayman (and English) law where anyone can bring a private criminal prosecution.
Wouldn’t it be nice if people who didn’t have a clue what they were talking about would stop offering ‘legal’ opinions?
That is correct. Private prosecutions are lawful. We might need to consider these in the near future.
The only draw back is that, with a private prosecution, the benefit of RCPS officers investigation functions are non-existent.
With a private prosecution, it will require a silk (a KC) guiding the attorney through the process and, if you get it wrong, there can be significant costs consequences.
Also wrong. The ‘benefit’ for the RCIPS’ investigation and all material gathered passes to the private prosecutor and you don’t ‘require’ a silk, or a lawyer at all for that matter. Although (like commenting on CNS apparently) taking some legal advice first would probably be a good idea.
Our trustees of law and order seem eager to put their thumb on the scale, even when they know (or should know) it’s wrong to do so. They seem to enjoy dancing along the full spectrum of discretion from targeted retaliation to obstruction and political clemency – even armed with overwhelming evidence.
Attorney General and most Ministers do not give reasons for decisions, acts and omissions to act when it’s requested or pointed out and, when they do, it is diluted down to nothing of substance.
Oh this is going to be fun. Cant wait to hear from the DPP on oath as to what communications he might have had prior to making that interesting decision in the face of the evidence and the findings of the judge. Or just maybe the government will decide to increase their damages offer to Doctors Express and it will all go quietly away!
CIG would be bankrupt if they had to pay all the damages owed for all the human rights breaches and unlawful abuse of powers by public officials.
Look at this mess yet the architects of this fiasco will never face justice the two Jamaican officers who drafted this ridiculous warrant on instructions of from their CBC mentor will never be identified and charged or dismissed, on the contrary now vying for leadership I understand Sadly this was not the only unlawful raid I heard took place. Sadly it’s the leadership at the very top propping up this criminality at CBC who needed to be remove from a long time ago to stop corruption from spreading elsewhere in the civil service but it seems the Lodge has more say than Good Governance in Cayman.
Of course. It has to be Jamaicans to blame. It could never be Caymanians because we just don’t do criminal things.
Yes nowadays they seem to be involve in every friggin thing that going on here even their prime minister is upset about it . Who the cap fit let them where it .
its about high time that DPP’s office be reviewed and cleansed of the Bias and suspicious decisions being made! All involved need to be prosecuted to the fullest extent of the law as they would have prosecuted any Joe Smoe in the society. None of these people should be above the law.
Now we may see breathalyzing as a law, when people run their car into electricity poles.
Look, us law abiding peons don’t get it , the electricity poles around the island are magical and love dancing across the roads late at night.
Hopefully, they will shake the tree hard enough that all the rotten fruit will fall to the ground.
another disaster for the dpp and civil service….zzzz
Who is it in the office of DPP decision tree exercising abnormal discretion to pervert Justice, and how do we excise that interference from the path to justice? Eg. How is that McKeeva file coming along?
Thank God for this.
Justice needs to be done.
No one is above the law.
Unfortunately, some people are CLEARLY above the law.
Indeed
https://caymannewsservice.com/2022/10/mp-not-breathalyzed-after-crashing-into-pole/
Need a Judicial Review into the decision of the RCIPS not to use the breathalyzer. Inclusive review of all personal and official phone records.
OP here. You are right.
I should have said no one should be above the law.
It would be an incredible thing if this alleged criminal activity resulted in a prosecution.